- As a sovereign nation, China may legally prevent import to its shores of genetically modified products such as MIR 162 corn.
- Syngenta began selling MIR 162 corn seed in the U.S. years before obtaining import approval from China.
- Syngenta was aware of China’s “zero-tolerance” policy on unapproved genetically modified products.
- Syngenta promised the U.S. Government it would prevent unapproved MIR 162 corn from arriving on Chinese shores.
- Syngenta failed to implement stewardship policies to keep MIR 162 corn segregated from approved corn.
- Syngenta’s conduct resulted in China’s ban on U.S. corn, which caused billions of dollars in economic losses to U.S. corn farmers.
Syngenta contends that China violated the law when it banned U.S. corn. But, as a sovereign nation, China may legally prevent the import to its shores of genetically modified products such as MIR 162 corn.
Moreover, U.S. courts do not have the ability to adjudicate whether China violated the law. To do so would be contrary to the act-of-state doctrine, which “requires that . . . the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” W.S. Kirkpatrick & Co. v. Envt’l Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990) (emphasis added); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964) (“The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.”).
In 2010, Syngenta sought “non-regulated” status from the United States Department of Agriculture (“USDA”). In doing so, it promised that it would prevent unapproved MIR 162 corn from arriving on Chinese shores. It failed to meet this promise. Specifically, Syngenta failed to implement stewardship policies that would prevent the commingling of MIR 162 corn with approved corn.
The National Grain and Feed Association (“NGFA”) twice predicted that Syngenta would risk imploding the U.S. corn export market if it prematurely commercialized unapproved MIR 162. In 2011, the NGFA predicted that Syngenta’s premature commercialization of MIR 162, or Viptera Agrisure, could cost the American corn farmer upwards of $2.9 billion during crop year 2013. In 2012, the NGFA likewise predicted that Syngenta’s premature commercialization of Duracade Agrisure could cause another $3.4 billion in damages during crop year 2014.
Faced with dire warnings of up to $6.3 billion in damages to the American corn farmer, Syngenta chose to plow forward with MIR 162 anyway. It was not China’s predictable rejection of U.S. corn shipments including unapproved MIR 162 corn that caused a drop in corn prices. It was Syngenta’s own conduct that caused billions of dollars in losses to the U.S. corn market.
Written by:
Mikal C. Watts
Watts Guerra LLP
4 Dominion Drive, Bldg. 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
Email mcwatts@guerrallp.com
*This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.
© Watts Guerra LLP 2015
